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Adkins v. Marathon Petroleum Co., LP

United States District Court, S.D. Ohio, Western Division

December 4, 2019

BRENT A. ADKINS, Plaintiff,

          Dlott, J.



         I. Procedural History

         Plaintiff Brent A. Adkins brings this action against defendant Marathon Petroleum Company, LP (Marathon) for negligence under the Jones Act, 46 U.S.C. § 30104, vessel unseaworthiness under the general maritime law, and maintenance and cure. Plaintiff originally filed his case in Louisiana state court in 2015, where it was dismissed on forum non conveniens grounds. Plaintiff re-filed the lawsuit in this Court in late September 2017. Plaintiff alleges in the second amended complaint that he was exposed to hydrogen sulfide (H2S) while working as a tankerman, deckhand, mate, and crew member for Marathon from November 2008 until May 2012. (Doc. 18). Plaintiff claims he was injured as a result of long-term exposure to H2S and other hydrocarbon fumes in the scope and course of his employment aboard tugs and barges owned and operated by Marathon. Plaintiff alleges that Marathon negligently caused him to be chronically exposed to H2S fumes while loading and unloading cargoes of vacuum gas oil (VGO) and asphalt products. Plaintiff claims the fumes injured him and his lung performance deteriorated rapidly as a result of his exposure to H2S such that that he now requires supplemental oxygen on a nearly continuous basis. Plaintiff alleges that the unseaworthiness of Marathon's vessels was a substantial factor in his injuries and that he is entitled to maintenance and cure.

         The Court has held several informal discovery conferences with the parties' counsel to resolve various discovery disputes that have arisen in the case. Over the course of discovery, the parties have submitted briefs on specific discovery issues as directed by the Court. The parties' discovery disputes have largely revolved around the subject of atmospheric and exposure monitoring of H2S, which plaintiff has referred to as "Industrial Hygiene (IH) studies" or "Industrial Hygiene reports." Plaintiff alleges that Marathon has not produced IH studies for H2S-producing agents to which he was exposed over the course of his employment with Marathon. Marathon argues in response that it has produced all of the relevant information that plaintiff seeks in a 142-page document, which purportedly is a compilation of the results of all atmospheric monitoring Marathon performed in its marine division between 2006 and 2012. (See Doc. 53, Exh. 20). Plaintiff contends that the 142-page document does not satisfy Marathon's discovery obligations because Marathon has failed to produce other information related to H2S monitoring and exposure which is relevant to plaintiffs discovery requests but is not included in the 142-page document. Plaintiff asserts that the undisclosed information includes the underlying, or source, data for the information provided in that exhibit.

         The Court issued discovery Orders following the informal discovery conferences with the parties' counsel, including a May 14, 2019 Order on issues related to plaintiffs Requests for Production of Documents (RFP) Nos. 28, 29, and 30. (Doc. 38). Plaintiff sought in those requests: (1) documents related to IH studies Marathon had performed to determine the existence of H2S gas emissions on its tugboats and barges which carried specified H2S-producing materials (RFP No. 28); (2) IH records and other written materials reflecting certain properties of Marathon's fuel and liquid cargoes, including all H2S monitoring results related to exposure of crews to H2S and benzene while serving on Marathon tugboats and barges during the period of plaintiffs employment (RFP No. 29); and (3) all IH or other reports prepared for Marathon relating to the level of airborne chemical and hydrocarbon fumes during the period of plaintiff s employment (RFP No. 30). (Doc. 38-3).

         The Court directed Marathon to respond to RFP No. 28 by providing the following documents for the relevant time period (November 2008 through May 26, 2012): (a) lab analysis of the amount of H2S and other hydrocarbon emissions of the products transported on the vessels plaintiff was assigned to; (b) the IH samples for asphalt and VGO that were taken on any barges that plaintiff worked on, and during the loading and unloading of those barges, which carried those products; (c) the certificate of analysis for any testing related to these products which was conducted on the vessels that plaintiff worked on; and (d) for any sampling IH reports produced for the asphalt and VGO samples on the barges described in (b), the identity of the product tested, including a lab number to match any certificate of analysis. (Doc. 38 at 5-6). The Court ordered Marathon to respond to RFP Nos. 29 and 30 to the extent those materials relate to the products at issue (asphalt, VGO, H2S gas, and other hydrocarbon emissions), for the relevant time period (November 2008 through May 26, 2012), which were transported by vessels that plaintiff was assigned to during his employment with Marathon. (Id. at 6).

         The Court held two follow-up discovery conferences. (See Docs. 39, 43). As of June 12, 2019, the parties had exhausted the informal discovery process. The Court ordered the parties to: (1) go forward with the Rule 30(b)(6) depositions; and (2) if plaintiff maintained the position following the depositions that Marathon had not produced all material relevant to his document requests, then plaintiff could file a motion to compel supported by (i) evidence to show that the material produced by Marathon was non-responsive, and (ii) legal authority for his position that Marathon had failed to produce information that was responsive to plaintiffs document requests. (Doc. 43).

         Because plaintiff believed following completion of the Rule 30(b)(6) depositions that Marathon had not produced all relevant materials in response to the Court's May 14, 2019 Order, he filed a motion to compel. (Doc. 47). Plaintiff also moved for leave to file an amended supporting memorandum. (Doc. 50). Marathon does not oppose plaintiffs motion for leave to file an amended memorandum, and the motion (Doc. 50) is therefore granted. The matter is now before the Court on plaintiffs motion to compel (Doc. 47), the amended supporting memorandum (Doc. 58), defendant Marathon's opposing memorandum (Doc. 65), and plaintiffs reply (Doc. 69). The Court held a hearing on the record on the motion to compel on November 21, 2019. For the reasons stated on the record at the hearing and set forth below, plaintiffs motion to compel is granted in part and denied in part.

         II. Plaintiffs motion to compel/motion for sanctions (Doc. 47)

         Fed. R. Civ. P. 37 provides that "[a] party seeking discovery may move for an order compelling an answer, designation, production or inspection" if another party fails to provide discovery responses or provides an evasive or incomplete response. Fed.R.Civ.P. 37(a)(3)(B), (4). Fed. R, Civ. P. 26(b) allows discovery "regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.. .." Fed.R.Civ.P. 26(b)(1); N.T. by and through Nelson v. Children 's Hosp. Med. Or., No. 1:13cv230, 2017 WL 5953432, at *4 (S.D. Ohio June 30, 2017). The party "who files a motion to compel discovery bears the burden of demonstrating relevance." Id. (quoting William Powell Co. v. Nat'l Indent. Co., No. 1:14-cv-00807, 2017 WL 1326504, at *5 (S.D. Ohio Apr. 11, 2017)). If the Court grants a party's motion to compel, Rule 37(a)(5) authorizes the imposition of sanctions on the noncooperative party or their counsel, unless certain exceptions apply. Fed.R.Civ.P. 37(a)(5).

         Plaintiff moves to compel discovery and impose sanctions on Marathon on three basic grounds. First, plaintiff contends that Marathon did not produce Rule 30(b)(6) witnesses who were knowledgeable about the subject areas they were designated to testify on. (Doc. 58 at 19-25, Exh. 3- Plaintiffs Rule 30(b)(6) Notice of Deposition). Second, plaintiff argues that Marathon did not produce requested IH documents in connection with the Rule 30(b)(6) depositions, even though such documents should be available to Marathon due to the nature of its business and its industry. (See Doc. 58 at 27-33, Exh. 1- Plaintiffs First Request for Production of Documents). Third, plaintiff contends that Marathon has not complied with the May 14, 2019 discovery Order by producing documents as ordered by the Court. (Doc. 58 at 46-47, Exh. 2-Plaintiff s Second Request for Production of Documents, Nos. 28, 29, 30). Plaintiff argues that Marathon has engaged in a continuing pattern of abuse of the discovery rules that started in the prior Louisiana state court case and has continued to the present time. (Id. at 49-51). Plaintiff claims he is entitled to legal sanctions for Marathon's alleged discovery abuses, ranging from financial penalties to default judgment. (Id. at 52-54).

         With respect to the alleged Rule 30(b)(6) witness deficiencies, plaintiff withdrew his objections to all but Topic 25, relating to the deposition testimony of Jennifer Boggs. For the reasons stated on the record at the hearing, the Court overruled plaintiffs objection and determined that Ms. Boggs' deposition testimony was not deficient as to this topic.

         As to the alleged Rule 30(b)(6) document deficiencies, plaintiff withdrew all of his objections with the exception of documents sought in response to Request No. 13 (Doc. 58-3 at 19). For the reasons stated on the record at the hearing, the Court overruled plaintiffs objection.

         With respect to the documents sought in response to plaintiffs Second Request for Production of Documents, Nos. 28, 29, and 30, the Court has considered the parties' written submissions related to the current discovery dispute; counsel's arguments presented at the hearing on the motion to compel; the exhibits entered into the record at the hearing; and the testimony provided by plaintiffs proffered expert witness, Certified Industrial Hygienist Rachel M. Jones, Ph.D., CIH.[1] Plaintiff has carried his burden to show that three categories of documents which he seeks are relevant to his claim that from November of 2008 through May of 2012, defendant Marathon negligently exposed plaintiff ...

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